www.elsblog.org - Bringing Data and Methods to Our Legal Madness

19 September 2007

Appointed and Elected Judges: An Empirical Comparison

A recent paper by Stephen Choi (NYU), Mitu Gulati (Duke), and Eric Posner (Chicago) will surely interest judicial decisionmaking scholars (and others). In Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather
than Appointed Judiciary, the authors set out to test the conventional wisdom that suggests "appointed judges are superior to elected judges because appointed judges
are less vulnerable to political pressure." Drawing on a dataset of state high court opinions, the authors "construct objective measures
for three aspects of judicial performance: effort, skill and independence. The
measures permit a test of the relationship between performance and the four
primary methods of state high court judge selection: partisan election,
non-partisan election, merit plan, and appointment." A brief description of the results from their study follows.

"... results do not show appointed judges performing at a higher level than their
elected counterparts. Appointed judges write higher quality opinions than
elected judges do, but elected judges write many more opinions, and the evidence
suggests that the large quantity difference makes up for the small quality
difference. In addition, elected judges do not appear less independent than
appointed judges. The results suggest that elected judges are more focused on
providing service to the voters (that is, they behave like politicians), whereas
appointed judges are more focused on their long-term legacy as creators of
precedent (that is, they behave like professionals)."